Anthony Paul Banks v. State of Indiana ( 2013 )

FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Feb 07 2013, 8:51 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JUNE E. BULES GREGORY F. ZOELLER
Plymouth, Indiana Attorney General of Indiana
KELLY A. MIKLOS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY PAUL BANKS, )
)
Appellant-Defendant, )
)
vs. ) No. 50A05-1207-CR-343
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARSHALL SUPERIOR COURT
The Honorable Robert O. Bowen, Judge
Cause No. 50D01-0612-FB-49
February 7, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Anthony Paul Banks appeals the revocation of his probation and the trial court’s
order that he serve his entire previously suspended four-year sentence in the Indiana
Department of Correction. Banks argues that the trial court should have imposed less
than the entire previously suspended sentence and continued his probation. Finding no
error by the trial court, we affirm.
Facts and Procedural History
In 2008, Banks pled guilty to Class B felony burglary and was sentenced to eight
years in the DOC, with four years suspended to probation. He was released from the
DOC in October 2011.
The terms of Banks’ probation prohibited him from purchasing, possessing, or
consuming intoxicating beverages or illegal substances. See Appellant’s App. p. 15.
Banks was also required to submit to random drug screens. In March 2012, the State
filed a petition to revoke Banks’ probation, alleging that Banks had violated his probation
by testing positive for amphetamine and methamphetamine at one drug screen and
cocaine metabolites at another. At a hearing on the State’s petition, the trial court
received evidence of Banks’ failed drug screens. Banks told the trial court he “fell to
[his] weaknesses and made a couple [of] mistakes” and asked for mercy. Tr. p. 43.
However, Banks also admitted that he had an extensive criminal history. His criminal
history includes multiple juvenile adjudications, many of which would have been felonies
if committed by an adult. See State’s Ex. 9. And as an adult, Banks has eighteen felony
convictions, including convictions for theft, burglary, operating a motor vehicle while
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intoxicated, operating a motor vehicle after being adjudged a habitual traffic offender,
possession of marijuana, carrying a handgun without a license, pointing a handgun,
criminal mischief, and a number of habitual-offender enhancements. Id.
The State asked the trial court to impose the entire previously suspended sentence
of four years, saying “probation isn’t having any effect on [Banks].” Tr. p. 50.
Nonetheless, Banks asked the court to impose less than the entire previously suspended
sentence. The court rejected Banks’ request, telling Banks he had received a “fairly
lenient sentence” on the underlying burglary conviction despite his criminal history and
stated, “It’s obvious that probation has not worked in your situation.” Id. at 54. The
court ordered Banks to serve his entire previously suspended four-year sentence in the
DOC. Banks now appeals.
Discussion and Decision
Banks argues that the trial court should have ordered him to serve less than his
entire previously suspended sentence and continued his probation. We disagree.
Once a trial court has exercised its grace by ordering probation rather than
incarceration, “the judge should have considerable leeway in deciding how to proceed.”
Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007). If this discretion were not given to
trial courts and sentences were scrutinized too severely on appeal, trial judges might be
less inclined to order probation. Id. Accordingly, a trial court’s sentencing decision for a
probation violation is reviewable using the abuse-of-discretion standard. Id. An abuse of
discretion occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Id.3
If a trial court finds that a person has violated his probation before termination of
the period, the court may order execution of all or part of the sentence that was suspended
at the time of initial sentencing. Ind. Code § 35-38-2-3(g). In this case, we find that
Banks’ criminal history and likelihood of reoffending sufficiently support the trial court’s
decision to order execution of the previously suspended four years. When imposing
Banks’ probation-revocation sentence, the trial court cited his extensive criminal history.
In addition to a number of juvenile adjudications, the record shows that Banks—who was
thirty-six years old at the time of sentencing—has eighteen felony convictions, including
convictions for theft, burglary, operating a motor vehicle while intoxicated, operating a
motor vehicle after being adjudged a habitual traffic offender, possession of marijuana,
carrying a handgun without a license, pointing a handgun, criminal mischief, and a
number of habitual-offender enhancements.
Banks’ sole argument on appeal is that “it would have been more reasonable for
the trial court to sentence Banks to serve some shorter period of incarceration and
continue him on probation, possibly modifying the conditions of his probation to include
[a] drug[-]treatment program.” Appellant’s Br. p. 5. We cannot agree. Banks has a
significant criminal history and failed to take advantage of the alternative sentencing
opportunity previously afford to him. As the trial court aptly noted, “probation has not
worked” for Banks. Tr. p. 54. The trial court did not abuse its discretion in ordering
Banks to serve his entire previously suspended four-year sentence.
Affirmed.
BAILEY, J., and BROWN, J., concur.
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